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The Tricky Issue Of Severing US “Control” Over ICANN

From Wikipedia. Created by Matt Britt using data from the OPTE project.

One consequence of Edward Snowden’s NSA leaks was the Obama administration’s decision last year to give up power over the Internet Corporation for Assigned Names and Numbers. ICANN controls domain names on a global basis, and has nothing to do with NSA surveillance. But America’s historic influence over ICANN is a controversial symbol of American power over the Internet that became yet more controversial after Snowden. The United States had long said it would relinquish its power over ICANN. And so to deflect some of the global anger over the Snowden disclosures, the Obama administration decided to let ICANN go in September of this year.

These plans sparked a backlash in Congress, which in its recent Appropriations Act prohibited the US government from spending funds to relinquish its “responsibility” over the naming and numbering system. “Congress acted to protect the Internet from authoritarian regimes eager to censor websites globally,” says Gordon Crovitz of the Wall Street Journal, a fierce critic of the transfer. “Russia and China can censor the Internet inside their countries,” he explains, “but without access to the global root zone, they can't control websites beyond their borders that promote, say, Ukrainian independence or democracy in Hong Kong.” Crovitz concludes that transfer of US control over naming and numbering to ICANN would mark “the beginning of the end for the open Internet.”

These concerns are exaggerated, but the proposal to grant “independence” to ICANN or to redistribute its domain name functions raises a number of hard questions that should be answered clearly and convincingly before the United States gives up whatever leverage it possesses over ICANN.

ICANN creates and distributes top-level domains (.com, .edu, etc.) and helps ensure that domain names correlate with Internet Protocol (IP) addresses (unique identifiers for computers on the Internet). It executes this task through stewardship of the authoritative root zone file, which is “the global address book for data” that contains a definitive list of the IP addresses and top-level domains. ICANN assumed these functions in the late 1990s in contracts with the US Commerce Department that grew out of the US government’s early development of the Internet. These oft-renewed contracts are why so many believe ICANN is controlled by the United States. Foreign governments resent this control because the top-level domain names are worth billions of dollars and have significant political and moral salience (think of .gay, or .islam). Control over domain names also entails the potential for censorship (by regulating domain name use on a global basis) that authoritarian states in particular find attractive.

Crovitz is thus right that control over the root file brings with it global control over top-level domain names, and that this authority can be used to influence what appears on the Internet. He is also right that authoritarian (and many non-authoritarian) nations want to influence the root file. His concerns about this happening as a result of the devolution of independent authority to ICANN are less convincing.

Crovitz’s first mistake is his claim that the United States is giving up control of the Internet “to a still-to-be-determined collection of governments and international groups,” and, relatedly, that the “alternative to continued US authority is control by an international body dominated by authoritarian regimes.” This is not true. Power would simply devolve in the first instance to ICANN, a California non-profit corporation that has to date displayed a pretty stiff backbone in standing up to the demands of authoritarian nations and that has every interest in maintaining its independence.

Governments can influence ICANN through a Governmental Advisory Committee whose advice ICANN must “take duly into account” but is not bound by. This informational influence is entirely appropriate since ICANN has huge policy impacts on national governments. What is remarkable is the relatively puny institutional role that the GAC currently plays, and how little actual influence governments have had on ICANN policy. Crovitz himself points out that Saudi Arabia sought unsuccessfully to block creation of .gay, .bible, .islam, and many other top-level domains, and that France tried unsuccessfully to stop .wine.

Crovitz maintains that ICANN rejected these requests “because the US retains ultimate control over Internet domains, blocking authoritarian regimes from censoring or otherwise limiting the Internet outside their own countries.” But the United States has not “blocked” foreign governments from killing new top-level domain names. Rather, ICANN followed its policies and simply said “no.” It was able to do so not because of US might, but rather because the multistakeholder groups it ostensibly represents vociferously opposed these demands, and most importantly because ICANN controls the content of the authoritative root zone file (i.e., the data that goes into the root). A subset of nations (or for that matter, anyone) could in theory band together to establish a different authoritative root file, and try to convince major Internet infrastructure operators to mirror it rather than the one now created by ICANN and published on a server controlled by Verisign. But this has not happened because the costs of opting out of the current system and setting up a new one — one that would operate much less well for all users — are far too high.

The best argument for continued US contractual relations with ICANN is that the threat of withdrawing the contract has kept ICANN from going off the rails and capitulating to authoritarian governments or other nefarious interests. On this view, it is not direct US power, but rather the threat of giving control over the authoritative root zone file to another entity, that keeps ICANN in line. The argument is plausible, but it is not clear that the United States could carry out the threat. If the United States gave the contract for naming and numbering to another entity, it would still be possible (though not easy) for ICANN to arrange for Internet service providers and other operators of Internet infrastructure to mirror and treat as authoritative a copy of the root zone file from a master server under its control in (say) Geneva, in which case ICANN could continue as the root authority without the blessing of the United States.

This latter possibility, though distant, highlights the uncertainty of ownership and control of the root zone file. ICANN’s control over it originated in the first contract with the US government, in 1999. But it is unclear who “owned” the root file then or who “owns” the root zone file today — the United States, ICANN, Internet “stakeholders,” everyone, or no one. (A GAO study in 2000 struggled with this question.) The United States can produce no title document. It did fund those who developed the root zone file in the Internet’s early days — but the US government has often funded research and claimed no proprietary interest in its fruits. Today only 275 million or so Internet users, out of 3 billion total, are in the United States. As the Internet has grown into one of the most consequential global resources, US ownership of the root zone file isn’t an apt description, and US stewardship is no longer seen as comforting or helpful in many quarters around the globe, especially since it is so hard for nations and their citizens to opt out of the current naming and numbering system. This is why so many nations and interests want to clip the relationship between the United States and ICANN.

In truth, the ultimate locus of authority over the root file (and thus over top-level domains) is uncertain, and would depend on the context in which the power was challenged. The key point, however, is that it is not US power that has stopped other nations from getting their paws on the crucial root zone file in recent years. It was the combination of the benefits of a single root authority, the costs of opting out, ICANN’s historical role, and ICANN’s willingness to say “no” to government pressure.

Crovitz’s insistence that “American oversight protects the engineers and network operators who manage the Internet from political interference” is belied by the one instance when ICANN obviously caved to political pressure — by the United States. A decade ago ICANN tentatively approved the .xxx top-level domain name in accordance with its policies. The US government, under pressure from domestic groups and foreign governments, threatened to use its contractual rights to override ICANN’s decision, and the ICANN board buckled. This is precisely the kind of overbearing government influence that Crovitz worries about from authoritarian states. Yet the threat came from the United States, not an authoritarian state, and it was more credible than typical governmental rants against ICANN precisely because of the US contract with ICANN that Crovitz thinks is the key to ICANN independence and accountability.

ICANN’s capitulation was not the end of the story, however. The firm seeking the .xxx top-level domain invoked ICANN’s corporate charter and bylaws and brought an arbitral challenge to ICANN (in which I served as an expert witness, contra ICANN). The arbitrators, applying California and international law, ruled that ICANN failed to act in good faith in denying the .xxx domain name, ICANN reversed itself, and the US government acquiesced. The United States had sought to censor on a global basis, and ICANN caved. But ICANN was made accountable by and to its corporate governance rules, which helped preserve its independence. Crovitz exaggerates US power and influence over ICANN, but to the extent the United States has exercised its influence, it has not always been in the name of what Crovitz would call Internet freedom.

Despite his exaggeration of the US role in preserving Internet freedom via ICANN, Crovitz is right to question the future of ICANN’s role over naming and numbering once the United States gives up any claim to control over the root file. ICANN’s charter says that it should be accountable to “the Internet community.” But there is no such coherent community; many different public and private groups with many different and often contradictory interests have a stake in what ICANN does. ICANN presents itself as performing only technical functions. But as the controversies over top-level domains show, these technical functions have huge public policy implications. ICANN’s policy-making role is inherently controversial, and would be controversial in the hands of any institution because naming and numbering on a global basis is inherently contested.

What rules, then, should govern ICANN if it becomes fully and formally independent of the United States? The future effectiveness of the arbitral process that worked in the .xxx case is in question, especially since ICANN watered down that process after its loss there. That change by ICANN to its accountability policy highlights that it could alter its charter or bylaws (or change its place of incorporation), moving it in any number of directions that might or might not promote its accountability or Internet freedom. The worry with an independent ICANN is less that it will be overrun by authoritarian states than that it might be captured in more subtle and unpredictable ways by public and private interests that might push it to regulate in any number of directions, perhaps far beyond mere naming and numbering, and not necessarily in ways that promote a well-functioning or open Internet.

There is a search on for solutions to this conundrum. A January meeting to sort out these accountability issues and a more recent speech by Lawrence Strickling, the Commerce Department official in charge of the ICANN transition, highlight how little consensus exists and how hard it is to find a credible substitute for the current arrangement. The Working Group charged with managing the transition of from the US government contract confirmed the absence of ready solutions when it announced earlier this month that its work was significantly delayed. It is now pretty clear that no transition will take place by September.

The challenge is to find a governance approach for ICANN that is free of sovereign power but that preserves ICANN’s independence and guarantees that it remains accountable to its many stakeholders. This is not a new challenge. In fact, it is the same challenge that ICANN has faced for over two decades, with no workable solution yet discovered. Until an obviously satisfactory solution emerges, Congress — which has an important hearing on this very issue on Wednesday — is quite right to leverage whatever uncertain power the United States has over ICANN via contract.

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H. R. McMaster was the 26th assistant to the president for National Security Affairs. He served as a commissioned officer in the United States Army for thirty-four years before retiring as a Lieutenant General in June 2018.

Sharp changes are afoot throughout the globe. Demographics are shifting, technology is advancing at unprecedented rates, and these changes are being felt everywhere. How should we develop strategies to deal with this emerging new world?

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